Marijuana reform advocates have been looking for signs that an incoming president-elect Joe Biden will make good on his campaign pledge to pursue cannabis policy changes since the former vice president has been projected to win the election. But they didn’t get any such sign in a new racial equity plan his transition team has put forward.
While Biden emphasized on the campaign trail that cannabis decriminalization and expungements would be part of his racial justice agenda, the plan released over the weekend omits any specific mention of marijuana reform.
Many of the proposals are broadly described, however, and it’s possible that a policy like decriminalization could be folded into broader commitments to eliminate “racial disparities and ensuring fair sentences,” for example.
In any case, there’s been some skepticism on the part of advocates that Biden’s stated support for cannabis reform will be matched with administrative action. And although he and Vice President-elect Kamala Harris have repeatedly promised to follow through with decriminalization and expungements if elected, that issue did not make the cut in the new “commitment to uplifting Black and Brown communities.”
The page says Biden is working to “strengthen America’s commitment to justice, and reform our criminal justice system” and lays out other specific promises that were often mentioned on the campaign trail alongside marijuana reform, such as a ban on police chokeholds and creating a national oversight commission to track law enforcement abuses. But cannabis reform is nowhere to be found in the transition team document.
In contrast, a still-live page on Biden’s separate campaign site for his “Plan for Black America” that he rolled out while running for president, includes the pledge to “decriminalize the use of cannabis and automatically expunge all prior cannabis use convictions.”
Lawmakers and advocates frequently cite cannabis reform as a key racial justice measure, pointing out that Black people are significantly more likely to be arrested over marijuana offenses despite the fact that white people consume cannabis at a comparable rate.
A Biden campaign spokesman, when contacted by Marijuana Moment about the omission of the cannabis pledge from the new site, at first argued that it was because the document is focused on economic equity issues. But when it was pointed out that the page also includes several criminal justice-focused proposals such as stopping the “transfer of weapons of war to police forces” and the other related measures, he replied that the omission of marijuana reform didn’t signal a deprioritization of the issue.
“Nothing has changed,” he said, adding that other priorities of the incoming administration, such as LGBT rights, were also not specifically featured in the “Build Back Better” transition site.
We are preparing to lead on Day One, ensuring the Biden-Harris administration is able to take on the most urgent challenges we face: protecting and preserving our nation's health, renewing our opportunity to succeed, advancing racial equity, and fighting the climate crisis.
— Biden-Harris Presidential Transition (@Transition46) November 8, 2020
Part of advocates’ skepticism about follow through on the issue is related to the fact that Biden played a key role in advancing punitive anti-drug legislation during his time in the Senate and has declined to embrace adult-use legalization despite supermajority support among voters in his own party.
But while the racial equity page doesn’t seem to signal a sense of urgency when it comes to marijuana reform, many advocates are still optimistic that the Biden-Harris election bodes well for the issue overall.
Beyond decriminalization and expungements, Biden favors medical cannabis legalization, modestly rescheduling marijuana under federal law and letting states set their own policies without federal intervention. Harris is the main Senate sponsor of a bill to federally deschedule cannabis, though she has her own history of previously opposing reform.
“To truly achieve racial equity in marijuana policy, President-elect Biden must commit to removing marijuana from the list of federally controlled substances and repairing harms felt by individuals impacted by this country’s racist drug war,” Martiza Perez, director of national affairs at the Drug Policy Alliance, told Marijuana Moment. “Anything less than that is unacceptable and falls short.”
Biden could accomplish that by supporting Harris’s Marijuana Opportunities, Reinvestment and Expungements (MORE) Act to legalize marijuana at the federal level and implement a series of social justice policies. But he’s so far shown no inclination to do so.
House Majority Leader Steny Hoyer (D-MD) announced on Monday that the chamber will hold a floor vote on the bill, which also contains provisions to fund programs to repair some of the harms of the war on drugs, next month. The House was initially expected to do so in September, but it was ultimately postponed after certain centrist Democrats argued the optics of passing the bill would be bad for them before approving another coronavirus relief package.
“Our hope is that as vice president, Senator Harris will continue to champion the MORE Act as she did in the Senate as the bill’s lead sponsor,” Perez said. “This bill would deschedule marijuana at the federal level and provide a path for the resentencing and expungement of marijuana convictions in addition to other social justice components.”
For her part, Harris has indicated that she wouldn’t be proactively pushing Biden to adopt a pro-legalization stance. She did say last month that she has a “deal” with Biden to candidly share her perspective on a range of progressive policies he currently opposes, however, and that includes legalizing cannabis.
The senator also said that month that the administration would have “a commitment to decriminalizing marijuana and expunging the records of people who have been convicted of marijuana offenses.”
That promise is not featured on the transition team’s new racial equity page, however. It states more generally that we “can and must reduce the number of people incarcerated in this country while also reducing crime,” without specifically recognizing the role of the drug war in increasing incarceration rates nationwide.
The page also fails to note another drug policy reform position Biden holds but which advocates are generally opposed to: diverting people away from incarceration for drug possession and forcing them to enroll treatment programs. While reformers don’t want people to go to jail for drugs, of course, they are concerned that mandating treatment through drug courts inappropriately continues to involve the criminal justice system in responding to a health issue.
The work ahead in the next 73 days will be the foundation for an administration that puts the health, safety, and character of our communities first.
— Biden-Harris Presidential Transition (@Transition46) November 8, 2020
Meanwhile, advocates have noticed that Biden and Harris haven’t mentioned the cannabis-related campaign pledges since Election Day.
“During the campaign, President-elect Biden and Vice President-elect Harris both pledged to prioritize reforms to our nation’s cannabis policy,” NORML Executive Director Erik Altieri told Marijuana Moment. “They outlined plans that had the intention of ending marijuana possession arrests and getting the federal government off of the backs of states who wish to end their failed prohibitions.”
“Given that marijuana reform efforts were approved in every state they were on the ballot this election, and received more votes than Joe Biden in all of those states, the Biden-Harris administration needs to acknowledge the overwhelming public support these reforms have and move to rapidly champion change at the federal level,” he said. “The results from election night show that we have a mandate from the American people and we intend to make sure that elected officials abide by it.”
Arrests for drug sales, manufacturing and possession amounted to 1,558,862 in 2019—approximately 15 percent of all busts reported to FBI from local and state law enforcement agencies. That’s one new drug case every 20 seconds.
“Our criminal justice system cannot be just unless we root out the racial, gender, and income-based disparities in the system,” the Biden-Harris transition site says. “The system must be focused on redemption and rehabilitation.”
Shortly after becoming the party’s 2020 nominee, the former vice president’s ongoing opposition to recreational legalization is suspected of being at least partly behind the Democratic National Committee platform committee’s vote against adding the reform as a 2020 party plank in July.
So it may be incumbent upon Congress to advance broad legalization after he takes office. And the likelihood of that happening will hinge largely on the makeup of the Senate, which is yet to be determined.
Should Democrats reclaim control of the Senate and keep the House, the chance of advancing reform will be significantly increased. Sen. Chuck Schumer (D-NY), the current top Democrat in the chamber, who would be expected to be installed as the majority leader come January if the party wins enough of the outstanding races, said last month that he will put his own descheduling bill “in play” and that “I think we’ll have a good chance to pass it.”
With a Democratic-controlled Senate and the party still in control of the House, it stands to reason that cannabis reform would move in the 117th Congress, even if the pace of that reform and the administration’s role in promoting it remain uncertain.
That said, if Republicans keep their hold on the Senate, that could seriously hamper reform efforts. Senate Majority Leader Mitch McConnell (R-KY) is an adamant opponent of loosening laws on marijuana, all but ensuring that reform bills would not stand a chance in his chamber even as he has championed hemp legalization. Even modest House-passed legislation focused on banking access for cannabis businesses never received a vote.
“President-elect Biden has both the opportunity and responsibility to call upon lawmakers to advance comprehensive legislation to reform our country’s failed marijuana policies,” Steve Hawkins, executive director at the Marijuana Policy Project, told Marijuana Moment. “While Americans are divided among many issues, legalization is one issue that brings people across the country together. Voters in red states and blue states alike have shown that they support legalization and it’s time for the president and Congress to take real action.”
Outside of Congress, Biden could also make moves to advance cannabis reform administratively.
For example, he could reinstate a version of the Obama-era Justice Department memo that directed federal prosecutors to generally not interfere with state marijuana laws, which was rescinded by the Trump administration in 2018. It is also within the power of the executive branch to reschedule marijuana under the Controlled Substances Act. Biden has pledged to make a move to Schedule II, though that would not achieve many of the changes advocates seek.
The president has the unilateral authority to grant acts of clemency, including pardons and commutations, to people who have been convicted of federal marijuana or other drug offenses. He also gets to appoint an attorney general, drug czar and other officials who will make decisions on how the federal government handles the issue—though many of those officials will be subject to Senate confirmation.
Rep. Earl Blumenauer (D-OR) told Marijuana Moment in August that “the Biden administration and a Biden Department of Justice would be a constructive player” in advancing legalization.